The Constitution of India also known as Bharatiya Samvidhana is the supreme
book of India. The document lays down the framework demarcating fundamental
political code, structure, procedures, powers, and duties of governmental
institutions of the state and sets out Fundamental Rights, Directive Principles,
and the duties of citizens. It is the longest written constitution on earth. It
was adopted by the constituent assembly on 26 November 1949 and has become
effective on 26 January 1950.
The Constitution apart from showing the interrelationships between state organs
and their scope and powers, also tends to embody the ideals, aspirations and the
values to which the people have committed themselves. It reflects the soul of
the nation and the people's supreme\will.
That is why the Constitution is considered as an organic document that helps in
shaping democracy. A constitution is the legal and moral framework setting out
these powers and their limitations. There are three main organs of government
namely Legislature, Executive and Judiciary.
All three are assigned different functions and one cannot encroach upon each
other's functions. In case government arbitrarily uses it powers limitations can
be imposed upon the same for which Judiciary has a vital role to play by
practicing constitutionalism. The mere incontrovertible fact is that if a nation
has a constitution it does not� imply that it also necessarily has
Constitutionalism has a variety of meanings. Generally, the term
Constitutionalism is�a complex of ideas, attitudes, and patterns of behaviour
elaborating the principle that the authority of government derives from and is
limited by a body of fundamental law.
Absence of constitutionalism will lead to despotism.
Louis Henkin defines constitutionalism as constituting the following
- Government according to the constitution;
- Separation of power;
- sovereignty of the people and democratic government;
- constitutional review;
- independent judiciary;
- limited government subject to a bill of individual rights;
- controlling the police;
- civilian control of the military; and
- no state power, or very limited and strictly circumscribed state power,
to suspend the operation of some parts of, or the entire, constitution.
Henkin's nine elements of constitutionalism can be divided into two groups,
one is concerned with power construction and power lodgingand the other deals
with rights protectionHowever in the last few years, India has witnessed a
significant change in it's substantive law, heralded by the Supreme Court
rulings involving re-interpretations of the Constitution. On the occasion of
Constitution Day 2019, it was excavated that the concept of Transformative
Constitutionalism is used as an instrument by the court in ensuring a more
Meaning Of Transformative Constitutionalism:
Transformative Constitutionalism generally means using the law to effect
comprehensive social change through a non-violent political means. In 1998, Karl
Klare first coined the term Transformative Constitutionalism.
US Scholar Professor KarlKlare defines Transformative Constitutionalism as:
A long-term project of constitutional enactment, interpretation, and enforcement
committed transforming a country's political and social institutions and power
relationships in a democratic, participatory, and egalitarian direction.
Transformative constitution means that the law is transformed through a statute
by enacting a new law in place of preceding one in order to bring radical
change.This could also mean that the statute or constitution has a
transformative purpose, i.e., that a change in law is brought about that is
purposed to have a transformative impact on its field of action that could not
be regarded as transformative of the content of law. The Constitution of India
contains several elements that can be often described as transformative.
Thus we can say that Transformative Constitutionalism envisages a mechanism to
bring in socialchange from an unjust past to a democratic future using the
Constitution as a tool to achieve this objective.
India And Transformative Constitutionalism:
India had struggled not only with colonialism, but also with social ills such as
untouchability, caste discrimination, gender inequality, discrimination against
LGBTQ community. Which has been prevalent in India since ancient times. The
Indian constitution-making exercise was motivated with the view to overthrow and
change its colonial past and to bring about a new social and political order
based on democratic values. The Indian constitution was constructed as a 'moral
autobiography', which promised a new future while explicitly rejecting the
Various provisions under the Indian constitution exemplify the transformative
goal of the constitution. The Preamble contains the aspirations of the people
with the goals of Liberty, Equality, Fraternity and Justice.
It establishes a secular, democratic, socialist state. Part III of the
Constitution of India provides the Fundamental Rights including the ideals of
equality, non-discrimination, freedom of speech and expression, movement,
association, freedom of religion and personal liberty. It also abolishes
untouchability, feudal titles and begar. Thus, the quest for the establishment
of a new social order through political power is implicit in the constitution.
Bhargava believes that the Indian constitution was 'designed to break social
hierarchies' and open up a new chapter of freedom, equality and justice. It was
a revolutionary moment, especially for the deprived classes, who hoped to
receive equal treatment in society after its adoption.
Role Of Transformative Constitutionalism In View Of Navtej Singh Johar
Navtej Singh Johar V. Union Of India [(2018) 1 Scc 791]
The central issue in the case of�Navtej Singh Johar v. Union of India�(2018) 1
SCC 791,was the constitutional validity of Section 377 of the Indian Penal
Code, 1860 insofar as it applied to the consensual sexual conduct of adults of
the same sex in private. Section 377 was titled 'Unnatural Offences' and stated
that whoever voluntarily has carnal intercourse against the order of nature with
any man, woman or animal shall be punished with imprisonment for life, or with
imprisonment of either description for a term which may extend to ten years, and
shall also be liable to a fine.
On 27 April 2016, five people filed a new writ petition in the Supreme Court
challenging the constitutionality of Section 377 of the Indian Penal Code.
The petitioners claimed that the issues which they raised in their petition were
varied and diverse from those raised in the pending curative petition in the
2013�Suresh Kumar Koushal v. Naz Foundation case, in which the Supreme Court
had upheld the constitutionality of Section 377. The petitioners were dancer
Navtej Singh Johar, journalist Sunil Mehra, Chef Ritu Dalmia, hoteliers Aman
Nath and Keshav Suri, and businesswoman Ayesha Kapur.
This case was the first instance wherein the petitioners argued that they had
all been directly aggrieved because of Section 377, alleging it to be a direct
violation of fundamental rights.The petition was first placed before Justice S.
A. Bobde and Justice A. K. Bhushan on 29 June 2016. An order was passed to post
the matter before the Chief Justice of India, Justice Dipak Misra for
appropriate orders since a curative petition was already pending before the
constitution bench. On 8 January 2018, the case was listed to be heard by the
Chief Justice's bench, which passed an order stating that the case would be
heard by a constitution bench.
The matter was heard from 17 January 2018 by a five-judge constitution bench of
the Supreme Court. On 10 July 2018, the Supreme Court commenced hearing of the
pleas challenging the constitutionality of section 377. The bench ended its
hearing on 17 July 2018 and reserved its verdict, asking for both sides to
submit written submissions for their claims by 20 July 2018.On 6 September 2018,
the court delivered its unanimous verdict, declaring portions of the law
relating to consensual sexual acts between adults unconstitutional.
This decision overturns the 2013 ruling in�Suresh Kumar Koushal v. Naz
Foundation�in which the court upheld the law. However, other portions of Section
377 relating to sex with minors, non-consensual sexual acts, and bestiality
remain in force. The court found that the criminalisation of sexual acts between
consenting adults violated the right to equality guaranteed by the Constitution
of India. While reading the judgment, Chief Justice Misra pronounced that the
court found�criminalising carnal intercourse�to be "irrational, arbitrary and
The court ruled that LGBT people in India are entitled to all constitutional
rights, including the liberties protected by the Constitution of India. It held
that "the choice of whom to partner, the ability to find fulfillment in sexual
intimacies and the right not to be subjected to discriminatory behaviour are
intrinsic to the constitutional protection of sexual orientation". The judgement
also made note that LGBT community is entitled to equal citizenship and
protection under law, without discrimination. Thus, Indian Judiciary
demonstrated the manner in which it can act as a catalyst for Transformative
The Constitution of India on various occasions has been referred to as a dynamic
document. Apart from being the fundamental governing law of the country, it is
also considered to be a social document. In addition to that, the Constitution
envisaged to protect and promote the essential liberties of minority groups and
classes of individuals who had been systematically and historically
disadvantaged and discriminated against.
This underlying principle entailed that the Constitution was aware of the status
quo at the time of its enactment, however, unlike the American Constitution; it
chose and aspired to transform the society from what it was. Although the
society was unequal, it aimed to achieve equality rather than reinforcing the
status quo. One of the essential purposes of Constitution is considered to have
a reformatory effect on the society for the better and this objective is the
fundamental pillar of transformative constitutionalism.
The Supreme Court of India, while interpreting the Constitution incorporates the
concept of transformative constitutionalism. Essentially, this denotes that the
Constitution aspires to transform the society rather than bolster the existing
values subscribed by the majority. The Court in Navtej Singh Johar adopted this
line of reasoning quite eloquently. The Court enunciated the inner thirst of the
Constitution to transform the Indian society and thereby, embrace the ideals of
justice, liberty, equality and fraternity.
This also suggests that the Constitution has the ability to change with time and
adopt according to the societal needs. It is this ability of the Constitution
which gives it the character of a dynamic, living and organic document. With
regard to Section 377 of the IPC, the Court observed that the society has
progressively transformed a lot from what it was in 1860 when IPC was brought
The sexual minorities have been recognized and accepted in various legal
spheres however, criminalization of homosexual conduct under Section 377
creates nothing but a chilling effect. The principle of transformative
constitutionalism is applied to ameliorate this condition. The Court observed
that the judiciary has the duty to ensure that a sense of transformation
emanates and is propagated in the society via the Constitution as well as other
provisions of law.
The purpose of transformative constitutionalism thus, is to steer the society
with the help of legal institutions, in a direction of democratic egalitarianism
with an increased protection of fundamental rights and other freedoms. The bench
applied this principle to hold that the ideals and values enshrined in our
Constitution must be a reformatory nudge to bring about change in the societal
beliefs. Penalising homosexual conduct, in the opinion of the bench, denuded
individuals belonging to LGBT community of their constitutional right to live a
fulfilling life. The Court went on to hold that Section 377 violates the Right
to Life and equal protection of law.
However, the underlying principle in the whole reasoning emanated from the
'transformative constitutional' facet of the Constitution. In de-criminalisation
of consensual homosexual intercourse between two adults, the Constitution
assured that not just the homosexual but the entire LGBT community can live a
fearless life with freedom from state intrusion in consensual intimacy.
Moreover, the Court while taking a sensitive stance recognized that the entire
homosexual community had been oppressed, deprived of justice within a country,
which is dedicated to human freedom. To address this issue, transformation of
the society is essential. Transformative constitutionalism entails that the
Constitution in and of itself has the ability to produce a social catharsis.
In such a case, the transformative power of the Constitution is a way in which
the Constitution speaks to the rest of the society. Essentially, Constitution
plays the important role of questioning the existing notions about the dominance
of sexes and genders. It plays a transformative role as well as directs the
society's attention towards resolving the polarities of sex and binary nature of
gender. By virtue of which,... the constitutional values prevail over the
impulses of the time. The conception of 'transformative constitutionalism�has
been adopted by the apex court in its other judicial decisions as well. While
decriminalizing the archaic offence of adultery, the Court in Joseph Shine
recognized the transformative nature of the Constitution and how it affects the
One of the basic purposes of law is considered to act as a guiding light for an
individual's conduct in the society. In our opinion, the recent judgments of the
Supreme Court seek to transform the status quo which exists in the society by
asserting the transformative nature of constitution and the values which emanate
from it. Therefore, transformative constitutionalism played a very important
role in determining the Court's basis of its reasoning in Navtej Singh Johar.
However, the question which remains is whether merely by decriminalization of
homosexual conduct, that is, by removing a negative barrier without ensuring any
positive rights for the LGBT community, how far will the society be transformed?
If societal transformation through constitutional values was the purpose of the
Navtej Singh Johar judgment, it can be considered nothing more than a first step
towards enhancing the position of the homosexual community in the society.
Albeit being an initial step towards realising the rights of minority LGBT
community, it was an extremely significant one.
It reversed the decision in the preceding case of Suresh Kumar Koushal where the
court had relied upon the morality of the majority to uphold the constitutional
validity of Section 377. Navtej Singh Johar, on the other hand, aspires to
transform the current majoritarian societal opinion in relation to
homosexuality. However, only time will tell as to how far the Constitution and
the law would be successful to achieve its transformative aim.
The Supreme Court of India in Navtej Singh Johar, has undoubtedly taken a boldly
significant step towards a legal system which enforces the incorporationist and
egalitarian values of the Constitution of India. It endeavours to change the
status quo and the current societal beliefs by virtue of transformative
constitutionalism while upholding constitutional morality over and above the
morality of the majority society.
While doing so, the Court recognized the importance of the right to privacy and
how it is essential for it to operate in the private, consensual conduct of
homosexual adults. The researchers in this paper have endeavoured to give a
holistic view of the various previous judicial decisions in relation to Section
377 of the IPC. Thereafter, three most important principles are dealt with by
us, which the Supreme Court of India has recently adopted in its reasoning in
several landmark judgments, namely, the principle of transformative
constitutionalism, constitutional morality and the well-recognised individual's
Right to Privacy.
De-criminalizing private homosexual intercourse between two consenting adults by
reading down Section 377 of the IPC, is a bold step which the Court has taken in
an aspiration towards a society where the members of the LGBT community enjoy
all fundamental rights granted by the Constitution, on par with everyone else.
However, a lot still needs to be done, in a positive manner, for the protection
of the LGBT community from the systematic oppression and discrimination which it
has suffered in the Indian society. Reading down of Section 377, thus, is only a
first step towards equal protection of the LGBT community. The three organs of
the State and the society has a long way to go from Navtej Singh Johar to ensure
that the morality and values emanated from the Constitution prevail and guide us
towards a better tomorrow with dignity, sexual autonomy and individuality for
the LGBT community in India.
Over the last few years, India has witnessed significant changes in its
substantive law, ushered in by Supreme Court rulings involving
re-interpretations of the Constitution. On the occasion of Constitution Day
2019, we delve into the concept of Transformative Constitutionalism as an
instrument used by the Court in ensuring a more equitable society. Prominent
examples in this regard include the third gender judgement , which recognised
the rights of the third gender; the case which saw an end to decades of
criminalization of homosexuality is the Navtej Singh Johar case.
The Supreme Court's role as the custodian and interpreter of the Constitution
has enabled it to bring about these changes, combined with the growing
recognition of the Indian Constitution as a transformative, rather than rigid,
document. While the phrase�Transformative Constitutionalism�does not find
express mention in the same, the Supreme Court takes note of the transformative
power of the Constitution in its 2014 NALSA judgment.
The role of the Court is to understand the central purpose and theme of the
Constitution for the welfare of the society. Our Constitution, like the law of
the society, is a living organism. It is based on a factual and social realty
that is constantly changing. Sometimes a change in the law precedes societal
change and is even intended to stimulate it. Sometimes, a change in the law is
the result in the social realty.
The idea was expressly commented on four years later in the Navtej Singh
. The opinion authored by Justice AM Khanwilkar for then Chief
Justice Dipak Misra and himself states, This is perhaps the ultimate vision of a
transformative, rather than a transitional Constitution. This is a perspective
that sees the Constitution as not transformative because of its peculiar
historical position or its particular socio-economic goals but because it
envisions a society that will always be open to change and contestation, a
society that will always be defined by transformation.
Table of Cases:
Written By: Abhishek Roy,
- Navtej Singh Johar v. Union of India (2018) 1 SCC 791
- Suresh Kumar Koushal v. Naz Foundation case [(2014) 1 scc 1]
- State of Kerala and Anr. v. N.M. Thomas and Ors., (AIR 1976 SC 490)
- National Legal Services Authority v. Union of India and Ors., (2014) 5
- Joseph Shine v. Union of India, 2018 (11) SCALE 556
�L.L.M, Jogesh Chandra Chaudhuri Law college